Martin v. United States, 17053.

• Decision Date: 18 June 1958
• Docket Number: No. 17053.,17053.
• Parties: Richard C. MARTIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

256 F.2d 345 (1958)

Richard C. MARTIN, Appellant, v. UNITED STATES of America, Appellee.

No. 17053.

United States Court of Appeals Fifth Circuit.

June 18, 1958.

Chester E. Wallace, Atlanta, Ga., for appellant.

W. L. Longshore, U. S. Atty., Birmingham, Ala., William G. West, Jr., Asst. U. S. Atty., Birmingham, Ala., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

The appellant along with seven other defendants was indicted under the following counts: Count one charged defendant with armed robbery and the taking of $86,476 in violation of 18 U.S.C.A. § 2113(d), carrying a maximum penalty of 25 years. Count two charged him with knowingly receiving and disposing of money with intent to steal, in violation of 18 U.S.C.A. § 2113(e), carrying a maximum penalty of 10 years. Count three charged him with a kidnapping in conjunction with the bank robbery and this carried a maximum death penalty. Count six charged the defendant with transporting foreign securities or money in excess of $5,000 in violation of 18 U.S.C.A. § 2314, carrying a maximum of 10 years. Count eight charged the defendant with a conspiracy to commit the offenses in counts one, two and three in violation of 18 U.S.C.A. § 371, carrying a maximum of 5 years.

The defendant pled guilty and was sentenced to 30 years. This appeal arises from two motions by appellant to correct and vacate sentence. His claims are that the trial court failed to hold an inquiry to determine whether the guilty plea was voluntary and it in fact was not because of inducement, bargains and duress, that the court appointed counsel represented other defendants with conflicting interests with appellant, and that 25 years is the maximum sentence the court could legally impose under the indictment. The trial court held a hearing on these motions and by separate findings of facts and law denied appellant's motions.

At the arraignment the court appointed Walter Merrill, an attorney of over 20 years experience whose qualifications were stipulated by appellant's present counsel. At this time appellant pled not guilty. The principal factual dispute is between appellant's testimony and contentions at the hearing on the above motions and Merrill's as to what happened at a conference held before the trial, after which defendant changed his plea to guilty. Appellant testified as follows:

"Q. What induced you to change your plea? A. My court-appointed attorney informed me that I was charged with bank robbery, and unless I plead guilty, I stood a chance to get the electric chair.

"Q. Then you changed your plea by inducement? A. Yes, sir, I would say that."

On cross examination he testified:

"Q. Describe the time and the occasion on October 31st, when you say he induced you to enter a plea of guilty? A. I was in the Calhoun County Jail at Anniston, Alabama. The marshal came over and got me and took me to the place where they locked us up in the court house, and Mr. Merrill talked with me, and then he left me and came back, and he says: `I\'ve talked with the District Attorney, and Martin, unless you all plead guilty, they are going to give part of you the electric chair\', and he says `If you want to plead guilty and take the benefit of the doubt, take the court\'s leniency\', or something to that effect, I don\'t recall the exact words, `I can plead you guilty and get you off without that.\'

"He didn\'t specify how many years he would get me off with.

* * * * *

"Q. Didn\'t your court-appointed counsel, Mr. Walter Merrill, tell the group of you at the Anniston court house, that the only concession that the District Attorney, Mr. Frank Johnson, would agree to without a trial in this cause would be that if you plead guilty to all the counts outside of count three, the capital account, sic he would move to dismiss the capital account, sic Mr. Martin? A. To the best of my knowledge that was not his words, no.

"Q. What were his words along that line? A. That if we wanted to cause the government the expense of a trial that some of us would get the electric chair without a doubt, and the others would be salted away in the penitentiary for a long time, I believe was about the way he said it.

"Q. Did he say you would get the electric chair? A. He was talking to me and Mr. Andrews at the time, looked directly at the two of us."

Mr. Merrill testified as follows:

"Q. On this occasion, second occasion at Anniston, Alabama, when you talked to the entire group, please state your general recollection as to the conversation that was had between you and these defendants. A. I told them that the case was called for trial, and that the Judge wanted to know what we were going to do.

"I told them that I had talked to the District Attorney, Mr. Frank Johnson, who is now a judge, and that I had attempted to work out some agreement with him as to punishment, and that I couldn\'t get anywhere with him; that the only concession he would make was that if a plea of guilty was entered, he would dismiss the count that carried the capital punishment.

"And that I couldn\'t get any recommendation from Mr. Johnson concerning the length of imprisonment, but that he would dismiss the capital count.

"I told them that from what I knew of the evidence, that Mr. Johnson had let me know that he had, and that I had obtained from other sources, that they would be convicted. And that it had been my experience in the Federal Court that if a plea of guilty was entered, the punishment was not as severe as if they pleaded not guilty and were convicted; that I couldn\'t tell them what the punishment would be, but that had been my experience over the years.

"I told them that I didn\'t care whether they entered a plea of guilty or not, that I was leaving it up to them, and that I was going out of the room, to tell the Judge that they were making a decision, and that I would be back in about ten minutes, at which time I would ask them to let me know which, if any, wanted to plead guilty, and which if any wanted to remain under their plea of not guilty.

* * * * *

"Q. Was there any duress or efforts made in your presence about inducing these pleas of guilty? A. Nothing other than what I have stated.

"Q. I\'m going to apologize to you for asking this question. You yourself did not threaten or induce them to make that, did you? A. I neither threatened nor gave them any inducement that I have not already stated."

Rule 11, Fed.Rules Crim.Procedure, 18 U.S.C.A., states that the court shall not accept a plea of guilty without first determining that the plea is made voluntarily. The court below, which was the same as the trial court in the original case, found as facts that the only concession which the United States Attorney would agree to was to dismiss the capital count if they pled guilty and no offer or inducement as to any punishment was in fact given. The court in specific findings of fact found that the guilty plea was in fact voluntarily made with an understanding of the nature of the charges contained in the indictment and that the appellant had an opportunity to communicate with the court if he desired to do so.¹

The appellant contends that the final holding of Shelton v. United States, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579, would cause the plea in this case to be invalid. This is based on the theory that the dissenting opinion of this Court is now the law of the case. In the first opinion, 5 Cir., 242 F.2d 101, this Court held Shelton's plea was not voluntary, one Judge dissenting. This was reversed by the Court, en banc, two Judges dissenting, 5 Cir., 246 F.2d 571, with the former dissent becoming the majority. The Supreme Court reversed in a memorandum opinion stating: "Upon the consideration of the entire record and confession of error by the Solicitor General that the plea of guilty may have been improperly obtained, the judgment of the United States Court of Appeals for the Fifth Circuit is reversed and the case is remanded to the District Court for further proceedings."

This reversal does not necessarily mean that principles announced in the dissenting opinion of this Court have become the law or...